Rick Santorum Isn’t Crazy

Media pundits have been beating up on Rick Santorum for saying that the assertion of an absolute separation of church and state makes him want to throw up, for attacking John F. Kennedy’s pledge to be “a president whose religious views are his own private affair” and for declaring that “the idea that the church can have no influence in the operation of the state is absolutely antithetical to the objectives and visions of our country.”

In response, commentators have advised Santorum to read the Constitution, urged him to become familiar with the pronouncements of James Madison and Thomas Jefferson and chastised him for “bashing … the Constitution’s mandate that there should be separation between church and state.”

Well, if that’s the Constitution’s mandate, I guess a number of Supreme Court justices and A-list legal academics have somehow missed the message. In Wallace v. Jaffree (1985), Justice William Rehnquist called the “wall of separation” a “metaphor based on bad history, a metaphor which has proved useless as a guide to judging” and “should be frankly and explicitly abandoned.” Justice Potter Stewart frequently complained that decisions based on a doctrine of strict separation display a hostility to religion and threaten to establish a “religion of secularism.” Stewart was fond of citing Justice William O. Douglas’s pronouncement in Zorach v. Clauson (1952) that “We are a religious people whose institutions presuppose a supreme being.” Similar sentiments have been expressed by Justices Warren E. Burger, Byron White, Antonin Scalia and Clarence Thomas.
On the academic side, the Stanford professor Michael McConnell (formerly a federal judge) insists that “religion is under no special disability in public life” (“Accommodation of Religion,”1985 Sup. Ct Rev. I). McConnell cites the “historical record” as evidence that “accommodations of religion in the years up to the framing of the First Amendment were frequent and well known, and no one took the position that they constituted an establishment of religion.” He derides the separationist mandate as “the narrow ideological position of the secular elite,” a position that “relegates the large majority of the American public … to second-class citizenship” (“Accommodation of Religion: An Update,” George Washington Law Review, 1992).

McConnell is hardly unique in his views. Stephen Carter of Yale Law School, Douglas Laycock of the University of Virginia School of Law, Philip Hamburger of Columbia Law School, Michael Perry of Emory University School of Law, Frederick Mark Gedicks of Brigham Young’s J. Reuben Clark Law School, Steven Smith of the law school at University of San Diego, Jeff Powell of the Duke University Law School and the late Richard John Neuhaus, author of “The Naked Public Square,” are just a few of the many who have argued that the wall of separation thesis is historically, morally and politically indefensible. (I neither join nor dissent from this argument; I merely point out how widespread and respectable it is.)

This of course does not mean that Rick Santorum is right; only that he is not a total outlier or a nutcase. His views, although perhaps less well expressed than they might have been, are well within the boundaries of a legal and political debate that has been going on for more than a century.

On the one side, there is a line of cases stretching from Reynolds v. United States (1878) to Employment Division v. Smith (1990) that define the right of free exercise narrowly: while you are free to think and express whatever religious beliefs you like, if your beliefs lead to actions (like taking plural wives or ingesting peyote at a religious communion) that violate generally applicable laws, you are subject to criminal penalties.

On the other side, there is a line of cases stretching from Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972) to Hosanna-Tabor v. E.E.O.C. (2012) that extend free exercise protection to actions that flow from a sincere faith even if those same actions — like pulling your children out of school or discriminating on the basis of disability — would be disallowed were they performed for non-religious reasons by non-religious institutions. Religious obligations are trumped by law and public policy in one set of cases; law and public policy bend to religious obligations in the other. (It’s like a Gershwin song: I say separation, you say accommodation, except that there’s no chance of calling the whole thing off.)

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The same critics who fault Santorum for espousing extreme views also fault him for tilting at windmills. No one, they say, is claiming that “faith is not allowed in the public square.” Wrong again. There are legal philosophers who argue that persons of faith who enter the public square should check their doctrinal commitments at the door and not permit themselves even to think religious thoughts when considering questions of policy. Others are less severe, but still restrictive; they would allow persons of faith to have religious reasons for supporting a policy, but insist that before those reasons are offered publicly, they must be rephrased in a vocabulary accessible to everyone, that is, in a secular vocabulary.

Still others favor a more expansive accommodationism: They would allow frankly religious arguments to be made in the public forum even by legislators, but would require that those who make them be able to justify their vote in secular terms if asked to do so. And at the most generous end of the spectrum, where Santorum lives (but hardly alone), we find the conviction that religious discourse is as good as any other (and better than most) as a resource for deciding matters of state and should be a fully enfranchised partner in the political process.

So while Santorum may have been ill advised to turn from the economy to social issues and unwise or tone-deaf in his choice of phrases (“makes me throw up” is not in the standard political lexicon), nothing he has said about the relationship between church and state is beyond the pale, and much of it is standard, if contested, fare in the courts and the law reviews.

And the beat goes on. Just last Friday, the Florida legislature sent to Gov. Rick Scott a bill that would allow students to offer “inspirational messages” at mandatory school gatherings. The phrase “inspirational messages” is supposed to inoculate the bill against the charge that it is just a way of getting prayer back in the schools. But of course opponents are already calling that a transparent pretext and their case is helped (and perhaps made) by Scott, who indicated that he is inclined to sign the bill because “I believe in Jesus Christ.” ( You wonder where his advisers were.)

The battle is already shaping up and when the issue is fully joined in the courts, as it no doubt will be, you can be sure that the arguments Rick Santorum has been pilloried for will be heard again in the land.

An earlier version of this article misidentified Douglas Laycock’s affiliation. He is at the University of Virginia School of Law. This has been corrected. Also, Frederick Mark Gedick’s name was misspelled, and has been corrected.

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Stanley Fish is a professor of humanities and law at Florida International University, in Miami. In the Fall of 2012, he will be Floersheimer Distinguished Visiting Professor at the Benjamin N. Cardozo School of Law. He has also taught at the University of California at Berkeley, Johns Hopkins, Duke University and the University of Illinois, Chicago. He is the author of 15 books, most recently “Versions of Antihumanism: Milton and Others”; “How to Write a Sentence”; “Save the World On Your Own Time”; and “The Fugitive in Flight,” a study of the 1960s TV drama. “Versions of Academic Freedom: From Professionalism to Revolution” will be published in 2014.